COVID-19 FOI Request: Definition of "the governing rules"

Phillip Sweeney made this Freedom of Information request to Australian Securities and Investments Commission

Response to this request is long overdue. By law, under all circumstances, Australian Securities and Investments Commission should have responded by now (details). You can complain by requesting an internal review.

From: Phillip Sweeney

Delivered

Dear Australian Securities and Investments Commission,

The Australian Law Dictionary {Oxford University Press} defines “trust deed” as follows:

“The instrument (a deed of settlement) establishing a trust. The deed must have four essential elements of a trust (trustee, beneficiary, the trust property, and some obligation annexed to the property) along with the three certainties (intention, subject matter, object). An express trust must be established in writing by a DEED (signed, sealed and delivered) by a settlor, who settles an amount of money or other property on the trust and establishes the terms on which the trustee holds the trust property”

There is only one “Trust Deed” properly so-called for any trust and that is the founding Trust Deed that establishes the trust {ie the original Trust Deed}. Subsequent Deeds that vary the terms of the trust are properly called Amending Deeds {or Deeds of Variation or Deeds of Modification}.

Butterworths Australian Legal Dictionary defines “governing rules” as follows:

“In relation to superannuation fund, approved deposit fund or a unit trust, any trust instrument, other document or legislation, or combination of these, governing the establishment and operation of the fund or unit trust.”

APRA makes the following comments at:

https://www.apra.gov.au/trust-deeds-and-...

“Governing rules will always include the trust deed or other constituent instrument and any rules attached to the trust deed or other instrument together with any further rules which are made pursuant to such instrument.”

The original Trust Deed and all VALID amending Deeds must be read as ONE LEGAL DOCUMENT to determine the 'governing rules' of the fund.

An amending Deed does not replace the original founding Trust Deed. If the amending Deed is legally valid it merely amends the provisions of the original Trust Deed.

If an amending power is reserved in the original Trust Deed, which confers a power to amend the provisions of the original Trust Deed on one or more parties, then an amending Deed (or other instrument such as an Act of Parliament) can be used to amend the provisions of the original Trust Deed if properly executed in accordance with the provision of the "Power of Amendment".

The original Trust Deed is the most important legal document in any trust including a superannuation trust.

The original Trust Deed and all VALID amending Deeds must then be read as ONE LEGAL DOCUMENT to determine the lawful benefit payment.

Refer to the following statement concerning the Deeds of the Australia Post Superannuation Scheme {APSS} at https://www.apss.com.au/about/?page=poli...

“The approved Trust Deed has been modified over time. The following documents provide the details of each of these modifications approved by the Trustee. The APSS Trust Deed (Approved) above, plus the Deeds of Modification below are therefore the official APSS Trust Deed. In the event of any conflict, these documents will always overrule the above APSS Trust Deed (Consolidated/Unofficial). The Consolidated/Unofficial version is a handy reference to the Trust Deed, incorporating all the modifications, but is not the final approved authority if there are any discrepancies.”

The Trustee of the APSS complies with its public disclosure obligations pursuant Section 29QB of the SIS Act and Regulation 2.38 of the SIS Regulations and the following Deeds are available for download not only by beneficiaries of this superannuation scheme but by any interested member of the public, including financial journalists, Senators and Members of Parliament :
(i) The original Trust Deed that established the APSS dated 19 June 1990;
(ii) 19 amending Deeds for the APSS {Deeds of Modification} dated from 15 May 1991 to 3 March 2020.

The Federal Court commenting of the rights of members of regulated superannuation funds in Commissioner of Taxation v Commercial Nominees of Australia Ltd [1999] FCA 1455 stated at [41].
* the right to require the Trustee and the Principal Employer to administer the Fund in accordance with the rules;
* the right to require that the provisions of the Original Trust Deed not be amended except in accordance with the amendment provisions contained in the Deed;
* an entitlement, subject to the matters referred to made below, to whatever benefits the rules provided on the death, retirement, resignation, retrenchment, disability or illness at the time such event occurred to the member;

The Determination of the Federal Court was affirmed by the High Court of Australia in Commissioner of Taxation v Commercial Nominees of Australia Limited [2001] HCA 33; (2001) 179 ALR 655.

By providing access to the original Trust Deed and all amending Deeds, the trustee of the APSS ensures that not only can any beneficiary {or their legal advisors} check that entitlements are properly and legally determined but so can any interested member of the public in a COMPULSORY superannuation system.

The documents I seek are:

(i) a copy of any legal opinion in the possession of ASIC or similar document that would dispute that “the governing rules” of a superannuation scheme would not include the original Trust Deed and all VALIDLY executed amending Deeds {whether referred to as Deeds of Variation or Deeds of Modification}.

(ii) A copy of any legal opinion in the possession of ASIC or similar document that would dispute that the trustee of the Australia Post Superannuation Scheme {APSS} is wrong on its “warning” concerning “the current compilation of the rules” as only being a handy reference and not “the final approved authority if there are any discrepancies”.

Yours faithfully,

Phillip Sweeney

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